Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

Holder’s Idea of Due Process

Eric Holder gave a speech the other day and addressed the issue of whether the president has the authority to order the killing of an American citizen if he determines that the individual is aiding terrorists abroad. And he makes a distinction between due process and judicial process:

“Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of Al Qaeda or associated forces,” Mr. Holder said. “This is simply not accurate. ‘Due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.”

Now, if this argument were limited only to people operating abroad and engaged in actual terrorist activity, one might be able to accept it. But they have essentially made the same argument for a whole range of executive branch decisions involving the war on terror that operate against American citizens in this country. That’s the whole point of invoking the State Secrets Privilege, to say that the executive branch’s internal deliberations are enough to satisfy the constitution and that no one should have recourse to the courts to challenge those decisions.

When Obama officials (like Bush officials before them) refer to someone “who is a senior operational leader of Al Qaeda or associated forces,” what they mean is this: someone the President has accused and then decreed in secret to be a Terrorist without ever proving it with evidence. The “process” used by the Obama administration to target Americans for execution-by-CIA is, as reported last October by Reuters, as follows:

American militants like Anwar al-Awlaki are placed on a kill or capture list by a secretive panel of senior government officials, which then informs the president of its decisions . . . There is no public record of the operations or decisions of the panel, which is a subset of the White House’s National Security Council . . . Neither is there any law establishing its existence or setting out the rules by which it is supposed to operate.

As Leon Panetta recently confirmed, the President makes the ultimate decision as to whether the American will be killed: “[The] President of the United States obviously reviews these cases, reviews the legal justification, and in the end says, go or no go.”

So that is the “process” which Eric Holder yesterday argued constitutes “due process” as required by the Fifth Amendment before the government can deprive of someone of their life: the President and his underlings are your accuser, your judge, your jury and your executioner all wrapped up in one, acting in total secrecy and without your even knowing that he’s accused you and sentenced you to death, and you have no opportunity even to know about, let alone confront and address, his accusations; is that not enough due process for you? AtEsquire, Charles Pierce, writing about Holder’s speech, described this best: “a monumental pile of crap that should embarrass every Democrat who ever said an unkind word about John Yoo.” …

The willingness of Democrats to embrace and defend this power is especially reprehensible because of how completely, glaringly and obviously at odds it is with everything they loudly claimed to believe during the Bush years. Recall two of the most significant “scandals” of the Bush War on Terror: his asserted power merely to eavesdrop on anddetain accused Terrorists without judicial review of any kind. Remember all that? Progressives endlessly accused Bush of Assaulting Our Values and “shredding the Constitution” simply because Bush officials wanted to listen in on and detain suspected Terrorists — not kill them, just eavesdrop on and detain them — without first going to a court and proving they did anything wrong. Yet here is a Democratic administration asserting not merely the right to surveil or detain citizens without charges or judicial review, but to kill them without any of that: a far more extreme, permanent and irreversible act. Yet, withsomerighteousexceptions, the silence is deafening, or worse.

How can anyone who vocally decried Bush’s mere eavesdropping and detention powers without judicial review possibly justify Obama’sexecutions without judicial review? How can the former (far more mild powers) have been such an assault on Everything We Stand For while the latter is a tolerable and acceptable assertion of war powers? If Barack Obama has the right to orderaccused Terrorists executed by the CIA because We’re At War, then surely George Bush had the right to order accused Terrorists eavesdropped on and detained on the same ground.

Should we just trust the president to stay within the Constitution? Hell no. We have far too many examples that prove how dangerous that is. In fact, let’s ask Eric Holder himself from 2008:

To those in the Executive branch who say “just trust us” when it comes to secret and warrantless surveillance of domestic communications I say remember your history. In my lifetime, federal government officials wiretapped, harassed and blackmailed Martin Luther King and other civil rights leader in the name of national security. One of America’s greatest heroes whom today we honor with a national holiday, countless streets, schools and soon a monument in his name, was treated like a criminal by those in our federal government possessed of too much discretion and a warped sense of patriotism. Watergate revealed similar abuses during the Nixon administration.

Comments

Seems rather ironic. We’re all saying that the right is insane for accusing Obama of having had Breitbart assassinated; but under this set of rules, Obama could have Breitbart assassinated anytime, and claim it’s perfectly legal. Breitbart, or Limbaugh, or the Kochs, or every blogger who ever criticized him.

From a policy perspective I support President Obama ordering Anwar al-Awlaki to be killed. I don’t find it necessarily hypocritical to oppose Bush’s wiretaps and support Obama’s killing al-Awlaki. These are two different things which also aren’t necessarily on the same gradient. Lumping all of us into the hypocritical group is both poor form and not compelling.

From a constitutional perspective I’ve yet to see a coherent argument which takes on all the best arguments on all sides regarding the killing of al-Awlaki, so I don’t know if my policy position is constitutional. I lean towards wanting the FISA courts involved so I prefer Congress and the Administration work out a process where they can kill people like Al-Awlaki by having a judicial check which approves such actions in nearly all cases. However, from a pragmatic perspecitve, my preference must consider the context that Republicans in Congress are not capable of developing sound policy on such matters, so it’s impossible for me to begrudge the president for doing what I think is imperative when it comes to the security interests of this country. A truly great president, in terms of being paradigm-busting, would of course lead such an effort where President Obama has yet to validate he possesses this quality.

Mr. Greenwald merely proclaiming it’s unconstitutional is thoroughly unconvincing, especially given his style of argumentation is similar to Joe Romm’s on the climate, where both are almost always right but present blatantly biased and therefore cringe-worthy arguments.

From a constitutional perspective I did find much of Bush’s surveillance techniques and the Bush/Obama position on the state secrets privilege obviously unconstitutional, especially given the existence of the FISA courts.

At best this would make the the president a dictator – needing no law passed by congress nor judicial judgement – and at worst a tyrant. They keep using the word process but isn’t the Queen of Hearts shouting “off with his head” a process. Now the process used by the Obama administration may be more just but it doesn’t have to be under this logic.

It pisses me off that people think there is some massive difference between the USA setting out to kill non-citizens and the USA setting out to kill citizens. What the hell is the difference? That the non-citizens don’t get a say in whether or not we elect a government that wants to kill them?

At least when a government kills non-citizens it doesn’t particularly impair the ability of the citizens to rein in the government. When a government asserts its right to kill citizens with no judicial review or openness, it’s only a matter of time before someone starts abusing that ability for political purposes.

I lean towards wanting the FISA courts involved so I prefer Congress and the Administration work out a process where they can kill people like Al-Awlaki by having a judicial check which approves such actions in nearly all cases.

That’s not enough for me. I don’t think its constitutional for the government to kill me – with no legal right to defend myself – just because a secret judicial approval accompanied the secret executive decision. Would you, Michael, be satisfied that the government had fulfilled its constitutional obligations if they did that to kill you? Your wife? Son? Brother?

SLC’s criteria are much stronger. While he doesn’t explicitly say what happens to the person once they are extradited, I might go for those (1) assuming that the purpose of extradition is to let the person stand regular legal trial, and (2) you announce that you’re looking to bring the person to trial, so that they are actualy aware that they are supposed to show up to trial.

(2) is particularly important. Without it, its just a people sitting in a closed room deciding “if Bob doesn’t show up in sixty seconds, we kill him, starting…now!” when Bob doesn’t even know about the meeting. That’s not justice – that’s just a way of alleviating your own guilt for a murder you have every intention of committing. A particularly juvenial way, at that.

Just to make it perfectly clear so that there be no misunderstanding, in the case of a US citizen in the US or subject to extradition, I would require that there be a trial, or plea bargain, not summary execution.

However, there is a problem if a prospective prosecutor puts capital punishment on the table. There are some countries (e.g. Mexico and France) that will not extradite someone who is subject to capital punishment.

slc @11: However, there is a problem if a prospective prosecutor puts capital punishment on the table. There are some countries (e.g. Mexico and France) that will not extradite someone who is subject to capital punishment.

I don’t see that as a problem, I see that as an ethical obligation to the accused and a treaty obligation to our allies. Unless we want them lying to us about people they want to extradite from our territory, eh?

It’s a problem for the prosecutor who either has to take the death penalty off the table or be faced with the host country denying extradition. Obviously, it’s not a problem for those who oppose the death penalty.

At least when a government kills non-citizens it doesn’t particularly impair the ability of the citizens to rein in the government. When a government asserts its right to kill citizens with no judicial review or openness, it’s only a matter of time before someone starts abusing that ability for political purposes.

I think the citizen aspect of this is somewhat trivial, it’d be more complex if al-Awlaki were the citizen of a country we engaged with diplomatically but that’s not relevant in this case. Human rights are human rights, not American rights; in fact the framers were careful to predominately refer to ‘people’ as a collection of individuals in the Constitution than use the term ‘citizens’. Otherwise they’d be contradicting the claim our rights are inalienable. The difficulty we’re having on the al-Awlaki matter is that our laws and military regulations were and remain ill-prepared to deal with stateless enemies, where the Congress has been atrocious regarding the need to modernize our laws to deal with terrorists.

So from my perspective the debate about whether to kill al-Awlaki should be focused on whether the U.S. government has the necessary constitutional powers and security obligations to do so regardless of whether he’s a U.S. citizen or not, that his right to life demands such consideration regardless of citizenship.

From a policy perspective it was a no-brainer that we needed to take him out so I was almost as happy this threat was neutralized as I was bin Laden’s dead. The only arguments I’ve heard otherwise simply didn’t consider the harm and continued threat he posed. However there can be a cost for freedom which is why a policy argument alone isn’t sufficient; we need to consider the constitutional implications of such as well. Given the effective responsibilities of the presidency, I appreciate and respect the president’s perspective and actions; especially given an impotent Congress.

I lean towards wanting the FISA courts involved so I prefer Congress and the Administration work out a process where they can kill people like Al-Awlaki by having a judicial check which approves such actions in nearly all cases.

eric states:

That’s not enough for me. I don’t think its constitutional for the government to kill me – with no legal right to defend myself – just because a secret judicial approval accompanied the secret executive decision. Would you, Michael, be satisfied that the government had fulfilled its constitutional obligations if they did that to kill you? Your wife? Son? Brother?

If me, my wife, my son, or my brother had did the things we know al-Awlaki did, where I’ve long-used the term ‘know’ extremely sparingly; then yes I would be satisfied if the FISA courts had approved such. But that’s also within the context I’m convinced we get the government we deserve; so if we elect some combination of wingnuts and fascists who appoint ideologues to the courts than we’re going to get what we deserve in unimagined ways.

From a constitutional perspective I’ve yet to see a coherent argument which takes on all the best arguments on all sides regarding the killing of al-Awlaki, so I don’t know if my policy position is constitutional.

I don’t have all the best arguments on both sides to go into right now, but I’ll go with the logic that convinced me. Essentially, it comes down to whether or not al-Awlaki can be considered an enemy combatant – NOT under the Bush definition, but under the normal definition. By the standardized rules of war (in the third Geneva Convention), a group that isn’t a country’s military can be treated as a military force if they meet the following conditions:

1) They must be commanded by a person responsible for their subordinates.
2) Have a fixed decorative sign recognizable at a distance.
3) Carry arms openly.
4) Conduct their operations in accordance with the laws and customs of war.

Being treated as a military force means that if captured, they’re afforded prisoner-of-war status. Otherwise, they can be treated as criminals. Additionally, members of a military force may be killed in combat without any attempt at capture, if they haven’t already surrendered and aren’t disabled beyond the ability to participate in combat. Targeted killings are generally acceptable against them as well. (Well, they aren’t against the laws of war, at least.)

So, there are advantages and disadvantages to being considered a military force. The question is: Can we consider Al Qaeda such a force? They do meet criteria 1 and 2 (though they typically don’t wear their emblems), but they fail 3 and 4. Historically, the response to an enemy who fails to obey the laws of war is to break the laws oneself in retribution. So, one could make a good argument that members of Al Qaeda constitute a military force which routinely violates the laws of war. The opposing nation then has the option to either treat them as a military force (in which case targeted killings are acceptable) or treat them as criminals (in which case they aren’t).

If they are treated as a military force (which the US does when it’s convenient), then the targeted killing of a member is acceptable under the laws of war (and likely Constitutional as well, as it outlines the right of the federal government to wage war). The key point here, though, is that the person targeted must unambiguously be a member of this group. They must either wear the decorations or publicly confess membership. If neither of those conditions is met, they must be treated as a criminal, and their involvement must be proven in a court of law.

In the case of al-Awlaki, he’s known to have published material through Al Qaeda’s news network. It’s hard to say whether that makes him a member or not. Since the evidence isn’t unambiguous, the targeted killing of him cannot be justified as the elimination of an enemy combatant.

So then it comes down to “due process.” I don’t think I have to explain why a secret meeting of government officials with no chance to defend yourself (al-Awlaki was even denied such a chance when he petitioned for it upon hearing of his death order) does not constitute due process in any sense. His killing was unconstitutional.

Though if you follow this logic through in the case of Osama bin Laden, that killing would actually be acceptable, as he was an unambiguous member of Al Qaeda.

So, what should have been done with al-Awlaki? I’d say, if the evidence was good enough to kill him for it, they could have tried him in absentia. Allow him the opportunity to present a defense, and if he doesn’t show up, appoint someone to defend him. If he’s convicted and sentenced to death, then a targeted killing (preferably with the permission of the government of the country he’s residing in) would likely be acceptable.

It’s not easy, but I don’t think it should be easy for the government to kill someone.

I appreciate the effort you put into your last post and respect your position while not agreeing with it. In fact the framework you use to make your conclusion is the very framework I argue is archaic when it comes to our balancing security risks with justice and rights. That stateless terrorists coupled to successful asynchronous violent tactics present an obviously tangible threat coupled to credible public concerns about security given this framework fails to address terrorism.

There’s an old management adage that all successful strategies ultimately fail; simply because conditions change to the point those strategies no longer work. I don’t claim to have the answers on how to best deal with issues that fall between the cracks of our criminal justice system and how we delegate war powers. I do assert such cracks exist precisely because these two paradigms are not sufficient to provide an optimal operating environment. That we require a process to analyze our current state relative to our desired state and adapt accordingly.

I’m also a bit bemused that we mostly see liberals arguing we take the conservative approach to handling terrorism, hoping to address with the traditional rules of the old order. I’m far more progressive, I think we need to systemically re-address how we engage these paradigm-busting security threats while keeping in mind our best principles.